P L D 1956 BJ 1

ORDER XII OF 1955 SETTING UP CONSTITUENT ASSEMBLY BUT ISSUED WHEN GOVERNOR-GENERAL WAS NOT IN PAKISTAN, HELD VALID.

On it being suggested by the Court that the Judicial Committee of His Highness the Amir of Bahawalpur, to which the etitioners had sought leave to appeal, had ceased to function because the territory of the State of Bahawalpur had merged in the Province of West Pakistan byt eh Establishment of West Pakistan Act, 1955, the petitioner’s counsel raised the contention that the Establishment of West Pakistan Act, 1955 was invalid in as much as the G.G’s. Order Xii of 1955 which summoned the Constituent Assembly which passed that Act, was not a valid Order because when it was issued, Mr. Ghulam Muhammad, the then Governor- General of Pakistan was not in Pakistan, and so he was not competent to issue it. Counsel based his argument on sections 5 and 304 of the Government of India Act, 1935.

Held, that nowhere in section 5 is it said that as soon as the Governor-Generasl or becomes divested of his powers. (p.5)A

It cannoit be inferred from section 304 that the Government of India Act, 1935, as in force in Pakistan makes jit incumbent that when the Governor-General or a Governor is absent from Pakistan someone must be appointed to act in his place. [p.5]

It cannot be inferred from section 304 that the Government of India Act, 1935, as in force in Pakistan makes it incumbentthat
when the Governor-Geneeral or a Governor is adsent from Pakistan someone must be appointed to act in his place. (p.5)B

A person is to be appointed to act as Governor-General only if the Governor-General is on leave, but as from the 14th day of
August 1947 no provision exists in any enactment with regard to the circumstances under which the Governor-General is to be
granted leave. (p.5)C, D

If the Governor-General is not on leave no one can be appointed to act in his place and the Governor-General cannot be held to
have been divested of his powers. (p.6)E